COVID-19 Vaccinations in the workplace

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MGA last addressed vaccinations for employees in our previous edition of the IR Magazine: “No Jab, No Job?”. Members were advised that mandatory COVID-19 vaccine for employees is permissible as long as such a direction is lawful and reasonable. Members were also cautioned to be mindful of anti-discrimination obligations and TGA guidelines on communicating vaccination information

Members to exercise caution

Mandatory workplace vaccinations remain a topic at the forefront of the current industrial relations sphere. Members are advised that there are only three circumstances where implementing a mandatory COVID-19 vaccination policy is permitted:

1. Where a specific law (eg a public health order) requires an employee to be vaccinated;

2. Where an enterprise/collective agreement or employment contract permits this; or

3. Where it is lawful and reasonable for the Member to direct a particular employee to be vaccinated.

At present, circumstances 1 and 2 as above are unlikely to apply to Members. Therefore, Members are reminded that implementing a mandatory COVID-19 vaccination policy is permitted only if it is lawful and reasonable.

Members may be required to consult with employees before implementing such a policy.

What is ‘lawful and reasonable’?

Lawfulness and reasonableness of an employer directive should be assessed on a case-by-case basis. This should be an assessment carried out for individual stores and individual employees. It may be reasonable for a particular store to require mandatory vaccination for a particular employee, but it may not be reasonable for another store or for another employee.

Members must consider the below factors in deciding whether a mandatory vaccination policy is lawful:

• Compliance with existing employment contracts, award or agreement; and

• Compliance with legislation (e.g. anti-discrimination law).

Members must consider the below factors, and any other relevant factors, in deciding whether a mandatory vaccination policy is reasonable:

• The nature of the workplace –

» how public-facing is the particular role? » Is social distancing possible?

Are other COVID-19 prevention measures possible?

» Is the employee providing an

‘essential service’?

• Extent of community transmission in the area;

• Risk of transmission in the area between employees, customers and members of the public;

• Work health and safety obligations;

• Each employee’s individual circumstances –

» Is the employee performing high-risk work as a result of their duties?

» Is the employee in a high-risk or vulnerable category?

• Whether the employee has any legitimate reason for not being vaccinated;

• Vaccine availability; and

• What ‘tier’ of work the particular employee performs.

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Employees working for supermarket and grocery retail Members are likely to perform ‘Tier 3 work’ (as defined by the Fair Work Ombudsman), which is where there is interaction or likely interaction between employees and other people. Members may also have employees that perform ‘Tier 4 work’, which is where there is minimal face-to-face interaction. It is more reasonable to require vaccination of a Tier 3 worker than a Tier 4 worker.

Determining whether mandatory vaccinations is lawful and reasonable can be a complex exercise. Members are encouraged to contact the MGA Legal and IR team if requiring assistance with assessing the above factors.

Non-mandatory vaccination

In light of the Fair Work Ombudsman’s view that the “overwhelming majority” of employers should assume that they cannot require mandatory COVID-19 vaccinations, Members are advised to refrain from implementing a mandatory COVID-19 vaccination policy without first seeking legal advice.

Instead, Members are advised to continue encouraging and incentivising staff members to receive the COVID-19 vaccine, as well as maintaining a high standard of COVID-19 risk control measures in the workplace. Vaccination is our key to reducing restrictions and reopening our communities and all eligible employees should be encouraged to speak with their doctor about getting vaccinated.

The MGA Legal and IR team has prepared a template COVID-19 vaccination policy that encourages employees to receive the COVID-19 vaccination. The MGA Legal and IR team can also be contacted on 1800 888 479 for further queries on vaccinations in the workplace.

Please contact your De Bortoli Sales Representative for further information.

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